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In public procurement, there is a fine line between clarifying a tender and carrying out an unauthorised amendment, which is often decisive. Submitting additional information after a tender has been opened usually carries the inherent risk the tenderer’s actions shall be viewed as ‘improving’ or ‘amending’ their tender, rather than simply ‘clarifying” information already contained within the original tender submission.

Such actions may likely result in the tender being excluded from further evaluation. This approach stems from the principles of equal treatment and transparency enshrined under section 2 of the Latvian Public Procurement Law (Publisko iepirkumu likums) (hereinafter, the “PPL”), which prevents one tenderer from gaining a selective advantage over the other contenders once the deadline has subsequently passed. In the same vein, section 41(6) of the PPL allows the contracting entity to request a tenderer to submit, supplement or clarify incomplete tender information or documents.

In practice, it is often considered the submission of any additional or previously omitted information or documents (after the tender submission deadline has elapsed), is likely to be considered as an actual improvement or amendment to the tender, which subsequently breaches the principle of equal treatment between tenderers. However, contracting entities should not always limit themselves to the categorical conclusion that the submission of any missing document constitutes a post-deadline amendment to the tender.

In a recent decision, the Procurement Monitoring Bureau (hereinafter, the “PMB”) assessed a situation in which the Court Administration (hereinafter, the  “Contracting Entity”) rejected the tender submitted by SIA “Baltic Software Factory” (hereinafter, “BSF”) on the grounds the tender was not accompanied by the CV of a specialist. The crux of the dispute between the Contracting Entity and BSF was whether the subsequent submission of the missing document after the opening of tenders should be regarded as an unauthorised ‘amendment’ to the tender or, rather, as a permissible ‘clarification’ of the tender. The PMB’s decision provides a clearer picture of when the submission of a document after the deadline for tender submission is to be regarded as an unauthorised amendment to the tender and when as a permissible clarification of the tender.

This article will examine BSF’s arguments, the objections raised by the Contracting Entity and the conclusions set out in the PMB’s decision regarding the validity of the Contracting Entity’s decision.

1. Case facts

The Contracting Entity organised an open tender for the maintenance, upgrading and servicing of an information technology system; only two tenderers submitted tenders. Following the evaluation of the tenders, the Contracting Entity decided to award the contract to SIA “DIGITEX”, whilst excluding BSF’s tender from further evaluation, as, in the Contracting Entity’s view, it did not meet the tender specifications regarding the programmers to be involved in the performance of the contract and the documents to be submitted for the specialists (PMB Decision No. 4-1.2/26-74 of 26 March 2026, at paras. 1 and 4).

The tender specifications stipulated that BSF must provide three programmers who meet a given set of education and experience requirements. The tender also required the submission of a list of specialists involved in the service, signed CVs and copies of documents confirming compliance with the tender qualifications. BSF had listed three programmers on its list of specialists. However, upon reviewing the CVs submitted, the Contracting Entity found that one specialist’s CV had been attached once, another specialist’s CV had been attached twice, whilst the third specialist’s CV had not been attached at all.

The Contracting Entity considered the subsequent submission of the missing CV would constitute an unauthorised addition to or amendment of the tender, as the CV in question would contain information on the specialist’s education and experience that had not been specified in the original tender.

BSF, for its part, maintained the three programmers had already been identified in the tender and listed in the list of specialists. Furthermore, the list of specialists would not be amended and the missing CV would merely confirm the specialist already identified in the tender met the requirements of the tender specifications.

BSF also pointed out the CV in question had been electronically signed before the tender submission deadline and the failure to submit the CV was a simple human error (the CV of another specialist had been mistakenly attached twice in its place).

2. Current practice regarding the amendment or clarification of tenders

It is undeniable a tender submitted in a public procurement procedure constitutes a binding and serious declaration of the tenderer’s intention, which cannot be amended or supplemented without restriction. On the other hand, it is the contracting entity’s duty to ensure all tenderers compete on an equal footing. Hence, it would generally not be permissible for the contracting entity to allow a single tenderer to improve their tender after the tender submission deadline has expired.

Furthermore, the legislator has underlined a tenderer must not be excluded solely on the grounds of negligent technical errors. It is precisely for this reason section 41(6) of the PPL provides for a mechanism that allows for the contracting entity to request clarification, supplementary information or missing documents if the information or documents contained in the tender are unclear or incomplete. The Senate of the Supreme Court of Latvia (hereinafter, the “Supreme Court”) has emphasised the purpose of this provision is to avoid excessive formalism, as – under certain circumstances – a tender submitted by a tenderer may be clarified or supplemented (Judgment of the Senate of the Supreme Court of Latvia of 20 September 2024, Case No. SKA-117/2024, para 8).

If a document submitted at a later stage merely ‘clarifies’ or ‘confirms’ what was already included in the tender, this may constitute a permissible clarification. Conversely, if the information submitted at a later stage gives the tender new content, replaces the initial proposal or allows the tenderer to fulfil a requirement which it had not originally fulfilled after the deadline has expired, there is a high risk this will constitute an unauthorised amendment to the tender. The Supreme Court has pointed out the law, by its very nature, provides for a right to clarify and supplement information already set out in the application, rather than to submit new information not originally provided (Judgment of the Senate of the Republic of Latvia of 18 June 2021, Case No. SKA-176/2021, para 9; Judgment of the Senate of the Republic of Latvia of 30 January 2024, Case No. SKA-24/2024, para 15).

Therefore, before referring the matter to the PMB, it is necessary to carefully assess what information was included in the original tender and what the subsequently submitted document would potentially alter. If the subsequently submitted document simply provides a more detailed explanation of information already inferable from the tender, then the submission of such a document may be permissible. The Supreme Court has stated the information submitted subsequently must be compared with the original tender, checking whether the documents submitted subsequently alter the substance of the tender (Judgment of the Senate of the Republic of Latvia of 18 June 2021, Case No. SKA-176/2021, para 9; Judgment of 30 January 2024, Case No. SKA-24/2024, para 15).

Consequently, if the information specified in the initial tender is substantially altered – for example, where the tender specifications require a specific individual’s experience – the tenderer may not, after the tender submission deadline has expired, replace the originally specified individual with another, more qualified person. Such a clarification or amendment to the tender would not be permissible.

It is important to emphasise, clarifying a tender is not a second chance to prepare a tender. It is an opportunity to provide further clarification of what was already included in the tender but was not sufficiently clear, complete or technically correct in its presentation. The Supreme Court has also emphasised the purpose of clarifying a tender is simply to reveal the tenderer’s intention as it existed at the time of submission, whereas assigning new content to an initially unclear formulation is to be regarded as an amendment to the tender (Judgment of the Senate of the Republic of Latvia of 18 June 2021, Case No. SKA-176/2021, para 9).

3. Exceptional cases where a tender is not deemed to have been amended

Within public procurement, the principles of proportionality and equal treatment are important. They essentially oblige contracting entities to assess the proportionality of each decision in the relevant situation and take decisions based upon a comprehensive analysis of the factual circumstances, rather than on a formal interpretation of legal provisions. Therefore, if a particular document has not been submitted is not conclusive; rather, what is decisive is whether the missing document merely substantiates facts that existed prior to the expiry of the deadline for submitting tenders and whether the existence of those facts can be objectively verified.

In its judgment of 22 January 2026 in Case C-812/24, the Court of Justice of the European Union emphasised a contracting entity may request an economic operator to submit, supplement, clarify or complete information or documentation if this appears to be incomplete or erroneous or where specific documents are missing, provided the principles of equal treatment and transparency are observed (Case C-812/24 LIPOR – Associação de Municípios para a Gestão Sustentável de Resíduos do Grande Porto and PreZero Portugal SA v Semural Waste & Energy SA ECLI:EU:C:2026:38, para 61).

The same judgment also underlines rectification may be permissible where the document proves facts or characteristics that arose prior to the date of submission of the tender and if the tender already specifies the relevant resource or person on which the tenderer relies (Case C-812/24 LIPOR – Associação de Municípios para a Gestão Sustentável de Resíduos do Grande Porto and PreZero Portugal SA v Semural Waste & Energy SA ECLI:EU:C:2026:38, paras 64 and 65).

In the case examined, the PMB deduced three key prerequisites from this ruling of the Court of Justice of the European Union. First, the submission of a missing document must not be prohibited by legislation. Second, the tender must contain information regarding the relevant resource – for example, a specialist or a person – on whose capabilities the tenderer relies. Third, the document to be submitted must relate to facts or characteristics that arose prior to the date of submission of the application or tender (PMB Decision No. 4-1.2/26-74 of 26 March 2026, para 5).

In this particular case, three specific specialists had already been named in the tender. For one of them, a CV had not been attached, whilst for another, it had been attached twice. In the PMB’s view, these circumstances led to the conclusion this was a simple human error in attaching the documents, rather than an attempt to materially alter the content of the tender. Furthermore, the missing CV had been electronically signed before the tender submission deadline and the facts and characteristics relating to it had arisen prior to that deadline. Consequently, the document could be regarded not as a document amending the content of the tender, but as evidence of the suitability of a specialist who had already been identified (PMB Decision No. 4-1.2/26-74 of 26 March 2026, para 5).

Accordingly, the PMB concluded, in the given situation, it was readily apparent from the tender that BSF had listed three programmers, but the CV of the third programmer had erroneously not been attached. The PMB also considered the missing CV had been signed prior to the submission of the tender; additionally, both the supporting documents and the qualifications themselves, as facts and characteristics, existed before the tender submission deadline. The PMB therefore annulled the Contracting Entity’s decision on the tender results and ordered a re-evaluation of the tenders (PMB Decision No. 4-1.2/26-74 of 26 March 2026, para 5).

4. Conclusions

The aforementioned case underlines that in public procurement, even an apparently minor technical error can hinder the award of a contract. A missing CV, an incorrectly uploaded file or a duplicate document may lead to the rejection of a tender. However, if the contracting entity has decided to exclude a tenderer on these grounds, this does not exclude the possibility of challenging the contracting entity’s decision. If the relevant resource is already evident in the tender, if the missing document existed before the deadline and its submission does not alter the substance of the tender, there is a legal basis for defending the tenderer’s right to clarify the tender.

In such cases, the quality of the evidence becomes crucial. If the tenderer is able to prove the missing document existed before the tender submission deadline, for example, by means of a secure electronic signature, a time stamp, document circulation data or other objectively verifiable evidence, then the likelihood of a positive outcome increases, as the tenderer’s position becomes a verifiable chain of facts that can be assessed.

Accordingly, where the tenderer can prove the missing information was generated and was available to them before the tender submission deadline, but was not submitted due to an error, is unlikely to be regarded as an amendment to the tender. In such cases, the key factor is not merely the missing document itself, but rather a demonstrable link between the original tender, the tenderer’s previously stated intention and the subsequently submitted evidence.

With this in mind, a timely legal analysis can distinguish an unauthorised amendment to a tender and a permissible clarification. It is precisely this distinction that frequently determines whether a tenderer loses the opportunity to compete or, on the contrary, ensures that their tender is assessed on its merits.